Skip to content


Ram Nath Chitroy Konwal Vs. Union of India - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberFirst Appeal No. 65 of 1970
Judge
Reported inILR1971Delhi226
ActsCode of Civil Procedure (CPC), 1908 - Sections 144
AppellantRam Nath Chitroy Konwal
RespondentUnion of India
Advocates: Hara Singh and; J.P. Gupta, Advs
Excerpt:
.....instituted in a court which has no jurisdiction to try it was so instituted in good faith and under a bonafide belief that the court has jurisdiction is a question of fact depending upon the facts and circumstances of each case. that was why the original suit was filed by the appellant in the said court, although the value of the suit was well over rs. under these circumstances, it cannot be said that the union of india did not act in good faith in filing the restitution application in the court of the subordinate judge. during this period, the union of india was prosecuting the application in good faith in a court which due to defect of jurisdiction was unable to entertain it. the union of india, in my view, is entitled to the benefit of section 14 of the limitation act and the period..........judge, 1st class, delhi, in suit no. 489/57 for a sum of rs. 24,430.65 paise against the union of india. the latter filed an appeal in the high court and the decree of the subordinate judge was modified by the high court by reducing the decree amount to rs. 18,420.82 paise. thereafter, the union of india filed an application in the court of the subordinate judge under section 144 civil procedure code for restitution of a sum of rs. 6,009.83 paise. this application was filed on 10-6-1968. an objection was raised by the appellant on the ground that the monetary jurisdiction of the court of the subordinate judge having been reduced to rs. 25,000 by the delhi high court act, 1966 with effect from 5th september, 1966, the said court had no jurisdiction to entertain the application.....
Judgment:

M.R.A. Ansari, J.

(1) The appellant herein had obtained a decree from the Subordinate Judge, 1st Class, Delhi, in suit No. 489/57 for a sum of Rs. 24,430.65 paise against the Union of India. The latter filed an appeal in the High Court and the decree of the Subordinate Judge was modified by the High Court by reducing the decree amount to Rs. 18,420.82 paise. Thereafter, the Union of India filed an application in the Court of the Subordinate Judge under section 144 Civil Procedure Code for restitution of a sum of Rs. 6,009.83 paise. This application was filed on 10-6-1968. An objection was raised by the appellant on the ground that the monetary jurisdiction of the Court of the Subordinate Judge having been reduced to Rs. 25,000 by the Delhi High Court Act, 1966 with effect from 5th September, 1966, the said Court had no jurisdiction to entertain the application filed by the Union of India. The matter was kept pending in the Court of the Subordinate Judge till 8-8-1969 when it was conceded by the learned counsel for the Union of India that the Court had no jurisdiction to entertain the application. Instead of returning the application for presentation before the proper Court, the learned Subordinate Judge sent the application to the District Judge for being forwarded to the High Court as the High Court only was competent to try suits of the value of more than Rs. 25,000. But before the District Judge could forward the application to the High Court, the Delhi High Court (Amendment) Act, 1969 came into force and it raised the monetary jurisdiction of the Court of the Subordinate Judge to Rs. 50,000. thereforee, the District Judge sent back the application to the Subordinate Judge for disposal. The appellant thereupon raised a fresh contention, namely, that the application must be deemed to have been presented for the first time on 5th November, 1969 which was the date on which the application was sent back by the District Judge to the Court of the Subordinate Judge and that the application was barred by time. The learned Subordinate Judge thereupon framed the following issues :-

1. Whether the application is within time? 2. Relief.

(2) The learned Subordinate Judge held both these issues in favor of the Union of India and overruled the objections raised by the appellant on the basis of limitation. The appellant has filed the present appeal against this finding of the learned Subordinate Judge.

(3) Two questions arise for consideration in this appeal, namely,-

(I)whether the court of the Subordinate Judge had jurisdiction to try the application when it was presented for the first time on 10-6-1968? and (ii) if the answer to the first question is in the negative, whether section 14 of the Limitation Act would save the application from the bar of limitation?

(4) Both these questions have been answered in the affirmative by the learned Subordinate Judge. According to him, the court of first instance referred to in section 144 Civil Procedure Code is the Court which had tried the suit and that an application under section 144 Civil Procedure Code had necessarily to be filed in that Court even if the said Court ceases to have jurisdiction to try the original suit. I am afraid this is not the correct view. Section 144 Civil Procedure Code which governs restitution applications has to be read with section 37 Civil Procedure Code . Under section 144 Civil Procedure Code , the application for restitution has to be filed in 'the Court of first instance'. Section 37 Civil Procedure Code defines the expression 'Court which passed a decree' as follows :-

'c 'Court which passed a decree', or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include,- (a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and (b) where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at. the time of making the application for the execution of the decree, would have jurisdiction to try such suit.'

(5) In the present case, the Court which would have jurisdiction to try the suit wherein the decree was passed on the date when the application for execution was made would be the High Court and not the court of the Subordinate Judge. thereforee, on the date when the restitution application was originally filed, i.e. 10-6-1968 the Court of the Subordinate Judge had no jurisdiction to entertain the application. I cannot accept the contention of the learned counsel for the Union of India that it is the value of the restitution application that determines the jurisdiction of the Court. It is the value of the suit out of which the restitution application has arisen, that is the criterion.

(6) The next question to be considered is whether section 14 of the Limitation Act would save the restitution application from the bar of limitation. The learned counsel for the appellant has cited a large number of authorities in support of his contention that a person cannot invoke section 14 of the Limitation Act where he has instituted the suit in a Court which had no jurisdiction to try it. It is not necessary to refer to all these cases, because the decision is very well settled, namely, that if a suit or proceeding is instituted in a Court which has no jurisdiction either with the knowledge that the Court has no jurisdiction or without exercising due diligence to find out whether the Court has jurisdiction to try the suit, section 14 of the Limitation Act will not help him. But it is equally well-settled that if a suit or proceeding is instituted in a Court which has no jurisdiction under the bona fide belief that it has such jurisdiction, then section 14 of the Limitation Act will save the suit from the bar of limitation. The question whether the suit instituted in a Court which has no jurisdiction to try it was so instituted in good faith and under a bonafide belief that the Court has jurisdiction is a question of fact depending upon the facts and circumstances of each case.

(7) In the present case, until the passing of the Delhi High Court Act, 1966 the Court of the Subordinate Judge had unlimited monetary jurisdiction. That was why the original suit was filed by the appellant in the said Court, although the value of the suit was well over Rs. 25,000.00 Under section 144 Civil Procedure Code , the application for restitution had to be filed in the Court of the first instance which in this case was the Court of the Subordinate Judge. The value of the claim for restitution was only Rs. 6,009.83 paise. Under these circumstances, it cannot be said that the Union of India did not act in good faith in filing the restitution application in the Court of the Subordinate Judge. It was the duty of the Court to have immediately returned the application for presentation before a proper Court. If the Court had done so, the Union of India would have been enabled to file the application immediately in the High Court, but the application was kept pending in the Court of the Subordinate Judge till 8-8-1969. Then it was sent to the District Judge for being forwarded to the High Court. It is not the proper procedure to have been followed by the learned Subordinate Judge. The District Judge returned the application to the Subordinate Judge on 5th November, 1969, because, in the meanwhile, the Amendment Act had come into force raising the jurisdiction of the Subordinate Judge to Rs. 50,000.00. The restitution application had to be instituted in a Court having jurisdiction on or before 16th February, 1969 whereas the application was sent back by the District Judge to the Subordinate Judge on 5th November, 1969. There is thus a delay of about nine months in the institution of the restitution application. During this period, the Union of India was prosecuting the application in good faith in a Court which due to defect of jurisdiction was unable to entertain it. The Union of India, in my view, is entitled to the benefit of section 14 of the Limitation Act and the period during which the Union of India was prosecuting the application in good faith must he excluded in computing the period of limitation. thereforee, the application filed by the Union of India is not barred by time.

(8) In the result, the appeal is dismissed but there shall be no order as costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //